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Federal "Defense of Marriage Act" (DOMA)

A married couple in California found themselves in the same dreadful situation as have hundreds of thousands of other married couples across the U.S. in recent years. Loss of employment plus massive health costs have driven them towards bankruptcy.

However, when they attempted to file bankruptcy as a married couple, the Obama administration said that they couldn't. The only reason is that the couple -- Gene Balas and Carlos Morales -- are both males. They were one of the approximately 18,000 same sex California couples who were married during the summer and fall of 2008. The state of California regards them as a married couple. However, because of the federal DOMA law, the federal government regards them as mere roommates, and regards their committed relationship as as nonexistent.

Gene Balas married Carlos Morales on 2008-AUG-30 during the brief interval between the ruling of the Supreme Court of California on 2008-MAY-14 that enabled same-sex marriages (SSMs), and the passage of Proposition 8, on election day in 2008-NOV which ended access to marriage by same-sex couples in the state, at least temporarily. 1

On 2011-JUN-13, 20 of 24 judges at America's largest consumer bankruptcy court, the U.S. Bankruptcy Court for the Central District of California became the third U.S. bankruptcy court to reject attempts by the Obama administration to disallow married same-sex couples from declaring bankruptcy together. However, the California court took the most unusual further step of declaring the DOMA law to be unconstitutional!

In his court filing, Gene Balas wrote: "It is hurtful to hear my own government say that my marriage is not valid for purposes of federal law."

The Justice Department finds themselves in an unusual predicament:

They, and many others in the executive branch of the federal government, have determined that the DOMA law violates the fourteenth amendment of the U.S. Constitution, and is thus unconstitutional.

The DOMA law was passed by Congress and is still on the books. Thus the administration is required to enforce it until such a time as it becomes definitively declared unconstitutional oe until Congress repeals it. As of mid-2011, only a federal court in Massachusetts and this bankruptcy court in California have determined that DOMA is unconstitutional. It will probably take a decision of the U.S. Supreme Court to settle the matter unless Congress repeals the law first.

The Congressional House of Representatives hired former Solicitor General Paul Clement to defend the DOMA law against constitutional challenges. Brendan Buck, a spokesman for House Speaker John Boehner (R-OH) , said that Clement's committee can't afford to respond to every legal challenge to DOMA.
He said:

"Bankruptcy cases are unlikely to provide the path to the Supreme Court, where we imagine the question of constitutionality will ultimately be decided. Obviously we believe the statute is constitutional in all its applications, including bankruptcy, but effectively defending it does not require the House to intervene in every case, especially when doing so would be prohibitively expensive."

Buck also told the New York Times that the ruling would not be appealed. 2

U.S. Bankruptcy Judge Thomas B. Donovan wrote a decision in the case on JUN-13, stating that DOMA violates the married couple's equal protection guarantees of the of the U.S. Constitution. Since there is "no valid governmental basis for DOMA" this makes the law unconstitutional.

The ruling says, in part:

"This case is about equality, regardless of gender or sexual orientation, for two people who filed for protection under Title 11 of the United States Code (Bankruptcy Code). Like many struggling families during these difficult economic times, Gene Balas and Carlos Morales (Debtors), filed a joint chapter 13 petition on February 24, 2011. Although the Debtors were legally married to each other in California on August 20, 2008 and remain married today, the United States Trustee (sometimes referred to simply as “trustee”) moved to dismiss this case pursuant to Bankruptcy Code § 1307(c)(Motion to Dismiss), asserting that the Debtors are ineligible to file a joint petition based on Bankruptcy Code § 302(a) because the Debtors are two males. The issue presented to this court is whether the Debtors, who are legally married and were living in California at the time of the filing of their joint petition, are eligible to file a 'joint petition' as defined by § 302(a). As the Debtors state:

'[T]he only issue in this Bankruptcy Case is whether some legally married couples are entitled to fewer rights than other legally married couples, based solely on a factor (the gender and/or sexual orientation of the parties in the union) that finds no support in the Bankruptcy Code or Rules and should be a constitutional irrelevancy.' Debtors’ Opp. 5:24–28.

In this court’s judgment, no legally married couple should be entitled to fewer bankruptcy rights than any other legally married couple. ..."

"It is undisputed that the Debtors are a lawfully married California couple who were married at the time they filed their bankruptcy petition. The Debtors have undertaken a lifelong commitment to each other, and wish to have their marital relationship accorded treatment in this court equal to the treatment of opposite-sex married couples. The Debtors came to this court seeking to restructure and repay their debts under chapter 13 of the Bankruptcy Code following numerous episodes of illness, hospitalization and extended periods of unemployment. The Debtors filed their bankruptcy petition jointly pursuant to § 302(a) which allows the filing of a joint petition by any eligible individual 'and such individual debtor’s spouse.' It is undisputed that each Debtor is an individual and is eligible to be a debtor in this court and to file a voluntary petition for relief."

"All trustee objections to confirmation were satisfied by the Debtors at the May 17 hearing on the Motion to Dismiss, and the Debtors’ proposed plan of reorganization currently is eligible for confirmation but for the pending Motion to Dismiss. The House Bipartisan Legal Advisory Group, acting through the United States Trustee, at the last minute orally requested a short continuance of the May 17 hearing in order to determine whether to intervene in this case to address the issues. Debtors consented and the court granted the request; yet, there have been no further pleadings and no challenge from the government to any issue raised by the Debtors. The government’s non-response to the Debtors’ challenges is noteworthy. ..."

"Debtors assert:

'As a lawfully wedded couple, the Debtors are constitutionally indistinguishable from opposite-gender married couples who enjoy the rights and responsibilities attendant to joint bankruptcy petitions. DOMA’s irrational insistence to the contrary 'is not within our constitutional tradition,' as it violates 'the principles that government and each of its parts remain open on impartial terms to all who seek its assistance.' Romer v. Evans , 517 U.S. 620, 633(1996). DOMA, as the U.S. Trustee seeks to apply it in this Bankruptcy Case, is inconsistent with the Constitution’s guarantee of equal treatment. The Motion to Dismiss should be denied and the Confirmation Objection should be overruled."

"Debtors offer strong authority for their position that the Fifth Amendment, like the Fourteenth, 'includes an equal protection component' and that the Fifth Amendment in this respect 'mirrors the Fourteenth Amendment.' Debtors’ Opp. 14: 2–16 & n. 8 (citing extensive case law). Debtors cite Justice O’Connor’s concurring opinion in Lawrence v. Texas , 539 U.S. 558, 583 (2003), noting that 'While it is true that the law applies only to conduct, the conduct targeted by [the statute at issue] is conduct that is closely correlated with being homosexual. Under such circumstances, [the] law is targeted at more than conduct. It is instead directed toward gay persons as a class.' Again, in 2010, the Supreme Court rejected the claim that discrimination against gay and lesbian individuals is no more than discrimination on the basis of 'conduct' when it said, 'Our decisions have declined to distinguish between status and conduct in this context.' Christian Legal Soc’y v. Martinez , 130 S.Ct. 2971, 2990 (2010). ..."

"In the court’s final analysis, the government’s only basis for supporting DOMA comes down to an apparent belief that the moral views of the majority may properly be enacted as the law of the land in regard to state-sanctioned same-sex marriage in disregard of the personal status and living conditions of a significant segment of our pluralistic society. Such a view is not consistent with the evidence or the law as embodied in the Fifth Amendment with respect to the thoughts expressed in this decision. The court has no doubt about its conclusion: the Debtors have made their case persuasively that DOMA deprives them of the equal protection of the law to which they are entitled. The court is of the opinion that the Debtors have met their high burden of overcoming the presumption of the constitutionality of DOMA. ..."

"The Debtors have demonstrated that DOMA violates their equal protection rights afforded under the Fifth Amendment of the United States Constitution, either under heightened scrutiny or under rational basis review. Debtors also have demonstrated that there is no valid governmental basis for DOMA. In the end, the court finds that DOMA violates the equal protection rights of the Debtors as recognized under the due process clause of the Fifth Amendment. No one expressed the Debtors’ view as pertinent to this simple bankruptcy case more eloquently and profoundly than Justice William O. Douglas in the concluding paragraph of his opinion for the majority in Griswold v. Connecticut , 381 U.S. 479, 486(1965):

'We deal with a right of privacy older than the Bill of Rights -- older than our political parties, older than our school system. Marriage is a coming together for better or for worse, hopefully enduring, and intimate to the degree of being sacred. It is an association that promotes a way of life, not causes; a harmony in living, not in political faiths; a bilateral loyalty, not commercial or social projects. Yet it is an association for as noble a purpose as any involved in our prior decisions'.''

"Upon consideration of the pleadings and all other materials filed in this case, and for good cause shown, the court finds that the Debtors satisfy every legal requirement to pursue their joint petition as filed pursuant to § 302(a). For the reasons stated herein and in the Debtors’ Opposition to the Motion and Debtors’ supporting authorities, the Motion to Dismiss Debtors’ chapter 13 case based on § 1307(c) is denied." 3

Twenty of the 24 judges on the bankruptcy court took the initiative of signing the ruling. Lawyer Robert Pfister, who represents the couple, said that the near unanimous decision by the judges is significant. He said:

"Litigating constitutional issues takes a lot of time and money. To have 20 judges sign on sends a strong message that almost the entire bench has decided this important constitutional issue."

References used:

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